The Trump administration made a novel legal argument Sunday to justify its decision not to return a Maryland man authorities mistakenly deported to a prison in El Salvador.
In a seven-page submission to U.S. District Judge Paula Xinis, Justice Department attorneys laid out their understanding of a Thursday Supreme Court ruling which said the administration should “facilitate” Kilmar Abrego Garcia’s return to the U.S.
They argued that they only understand “facilitate” to mean changing Abrego Garcia’s immigration status—and not taking any further action to actually bring him back to the United States.
“Defendants understand ‘facilitate’ to mean what that term has long meant in the immigration context, namely actions allowing an alien to enter the United States,” the court submission read. “Taking ‘all available steps to facilitate’ the return of Abrego Garcia is thus best read as taking all available steps to remove any domestic obstacles that would otherwise impede the alien’s ability to return here. Indeed, no other reading of ‘facilitate’ is tenable—or constitutional—here.”
Justice Department attorneys then argued that intervening beyond “domestic measures” could defy the Supreme Court’s order and violate the separation of powers by directing the Executive Branch to conduct foreign relations in a specific way.
“On the flipside, reading ‘facilitate’ as requiring something more than domestic measures would not only flout the Supreme Court’s order, but also violate the separation of powers. The federal courts have no authority to direct the Executive Branch to conduct foreign relations in a particular way, or engage with a foreign sovereign in a given manner,” the submission stated.
They also argued that orders made by plaintiffs like to “dispatch personnel” or to “send an aircraft” to bring Abrego Garcia back would involve “interactions with a foreign sovereign—and potential violations of that sovereignty.”
“But as explained, a federal court cannot compel the Executive Branch to engage in any mandated act of diplomacy or incursion upon the sovereignty of another nation,” they continued.
The Trump administration has been contesting the technicality of the word “facilitate” since the Supreme Court’s ruling last week.
White House Press Secretary Karoline Leavitt told reporters Friday: “The Supreme Court made their ruling last night very clear that it’s the administration’s responsibility to ‘facilitate’ the return, not to effectuate the return.”
Abrego Garcia came to the U.S. illegally at 16 to allegedly escape gang threats in El Salvador. He filed for asylum in 2019 but was denied the request as he had been in the country illegally for some time before filing his application. An immigration judge still ruled, however, that he could not be deported to El Salvador because of potential persecution.
Following the Supreme Court’s ruling Thursday to bring Abrego Garcia back to the U.S., Judge Xinis also ordered the Trump administration to provide her with daily updates on their efforts to return him.
State Department official Michael Kozak subsequently announced in a Saturday court filing that Abrego Garcia was “alive and secure” in the Terrorism Confinement Center in El Salvador.
Meanwhile, Salvadoran President Nayib Bukele is slated to meet with President Donald Trump Monday, which Leavitt said will include discussions about their “cooperation that is at an all-time high.”
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